Mason County Bd. of Educ. v. State Superintendent of Schools, 14672

• Citation: 165 W.Va. 732,274 S.E.2d 435
• Decision Date: 23 September 1980
• Docket Number: No. 14672,14672
• Parties: MASON COUNTY BOARD OF EDUCATION et al. v. STATE SUPT. OF SCHOOLS et al., Bright McCausland.
• Court: Supreme Court of West Virginia

Page 435

274 S.E.2d 435

165 W.Va. 732

MASON COUNTY BOARD OF EDUCATION et al. v. STATE SUPT. OF SCHOOLS et al., Bright McCausland.

No. 14672.

Supreme Court of Appeals of West Virginia.

Sept. 23, 1980.

Dissenting Opinion Jan. 26, 1981.

Syllabus by the Court

1. "Failure by any board of education to follow the evaluation procedure in West Virginia Board of Education Policy No. 5300(6)(a) prohibits such board from discharging, demoting, or transferring an employee for reasons having to do with prior misconduct or incompetency that has not been called to the attention of the employee through evaluation, and which is correctable." Syl. pt. 3, Trimboli v. Board of Education of the County of Wayne, W.Va., 254 S.E.2d 561 (1979).

2. "The authority of the county board of education to dismiss a teacher under W.Va.Code 1931, 18A-2-8, as amended, must be based upon the just causes listed therein and must be exercised reasonably, not arbitrary and capriciously." Syl. pt. 3, Beverlin v. Board of Education of Lewis County, W.Va., 216 S.E.2d 554 (1975).

3. The procedures specified in West Virginia Board of Education Policy No. 5300(6)(a) must be followed in every proceeding under W.Va.Code 18A-2-8 (1969) for the dismissal of a school employee on the ground of incompetency.

4. It is not the label given to conduct which determines whether § 5300(6)(a) procedures must be followed but whether the conduct forming the basis of dismissal involves professional incompetency and whether it directly and substantially affects the system in a permanent, noncorrectable manner.

5. A county board of education may receive complaints against a school employee from citizens where the complaints involve the professional competency of the employee. The board should not file formal dismissal charges against him until after it has received a professional evaluation of his competency and it has provided him with an improvement period as prescribed by § 5300(6)(a) of the Policies, Rules and Regulations of the West Virginia Board of Education.

Charles H. Damron, Point Pleasant, for appellant.

Davis & Nesius, John J. Nesius, South Charleston, for appellees.

McGRAW, Justice.

The central issue in this case is whether the Board of Education of Mason County erred in dismissing the appellant, Bright McCausland, as principal of a high school without first affording him an improvement period and other rights prescribed by § 5300(6)(a) of the Policies, Rules and Regulations of the West Virginia Board of Education. After carefully reviewing the record we conclude that the Board did err, and we reverse the decision of the Circuit Court of Kanawha County upholding the Board's action.

On August 18, 1973, the Mason County Board of Education formally initiated proceedings to dismiss the appellant as principal of Hannan High School. The Board's action was taken after two citizens of the school district filed complaints alleging that the appellant was incompetent and that he had willfully neglected his duties as school principal.

After service of proper notice on the appellant, a hearing was held in the matter of September 1, 1973. At that hearing several teachers and school employees gave evidence in support of the charges. The county superintendent of schools, the only person in a supervisory capacity who testified, stated that his evaluations of the appellant had been favorable and that the appellant had carried out the administration's policies at the high school.

At the conclusion of the hearing the Board found that there was sufficient evidence of seven incidents of incompetence, willful neglect of duty, and intemperance to justify the appellant's dismissal. ¹ The Board then, without affording the appellant an opportunity to improve his job performance, declared its three-year contract with him void.

The Board's action ignored two requirements of § 5300(6)(a) of the Policies, Rules, and Regulations of the West Virginia Board of Education. That section stipulates that a decision to terminate the employment of a school employee should be based on an evaluation of his job performance, and not upon factors extraneous thereto. Since the testimony of the county superintendent of schools, the only supervisory person who testified, was favorable to the appellant, it is obvious that the Board's decision was not based upon his evaluation of the appellant's performance. Also, it is clear that because the dismissal occurred immediately after the hearing the appellant was not afforded an improvement period as required by § 5300(6)(a). ²

Pursuant to the provisions of W.Va.Code 18A-2-8 (1969), Mr. McCausland appealed to the State Superintendent of Schools. In addition to challenging the sufficiency of the evidence, he took the position that § 5300(6)(a) permitted the Board to dismiss an employee only upon a complaint originating within the school system and that the Board could not dismiss him on complaints filed by citizens. The State Superintendent, after reviewing the record of the case, concluded that there was no competent evidence to support the holding that the appellant was guilty of intemperance or cruelty. He further found that the charges of willful neglect of duty were brought by inhabitants of the school district, rather than by the appellant's supervisor, and that they were thus not properly before the School Board. He ordered that the appellant be reinstated with back pay and interest.

Upon receiving the decision of the State Superintendent of Schools, the Board of Education, on May 10, 1974, petitioned the Circuit Court of Kanawha County for a writ of certiorari. After reviewing the petition the Circuit Court on August 1, 1975, ruled that the Board of Education lacked standing to seek judicial review of the State Superintendent's decision. The Board appealed the Circuit Court's ruling to this Court, and we, in Mason County Board of Education v. State Superintendent of Schools, W.Va., 234 S.E.2d 321 (1977), declared that a county board of education does have standing to obtain judicial review by writ of certiorari of an order of the State Superintendent of Schools requiring the reinstatement of an employee dismissed by the county board. We remanded the case to the Circuit Court for its further consideration.

Upon remand, after reviewing the record made before the Board, the Circuit Court of Kanawha County concluded that despite the provisions of § 5300(6)(a), W.Va.Code 18A-2-8 (1969) clearly empowered a board of education to dismiss a school employee. The circuit judge rejected the appellant's contention, adopted by the State Superintendent, that the Board could not properly dismiss him on matters brought to the Board's attention by citizens. He also reviewed the evidence in the case and concluded that it supported the finding that the appellant was guilty of willful neglect of duty, intemperance and cruelty. He reinstated Mr. McCausland's dismissal.

In his present appeal from the ruling of the Circuit Court the appellant contends that the decisions of the School Board and the Circuit Court, denying him the benefit of § 5300(6)(a) of the Policies, Rules and Regulations of the West Virginia Board of Education, are inconsistent with our holding in Trimboli v. Board of Education of the County of Wayne, W.Va., 254 S.E.2d 561 (1979). ³ He also contends that the decisions are contrary to the evidence adduced in the case.

In Trimboli, supra, we examined § 5300(6)(a) as it applied in a proceeding for the dismissal of an employee who was charged with being administratively and professionally incompetent. We concluded that § 5300(6)(a) extended two rights not elsewhere afforded such an employee. It entitled him to an evaluation by supervisory personnel, and it entitled him to an opportunity to improve his administrative or professional conduct. We held:

(f)ailure by any board of education to follow the evaluation procedure in West Virginia Board of Education Policy No. 5300(6)(a) prohibits such board from discharging, demoting, or transferring an employee for reasons having to do with prior misconduct or incompetency that has not been called to the attention of the employee through evaluation, and which is correctable. Syl. pt. 3, Trimboli v. Board of Education of the County of Wayne, supra.

The rulings of the Board of Education and the Circuit Court in the case before us raise the question of whether, even in view of the language of Trimboli, supra, a board of education must base its decision to dismiss upon a supervisory evaluation of an employee and must afford him an improvement period when W.Va.Code 18A-2-8 (1969) clearly provides "(n)otwithstanding any other provision of law, a board may suspend or dismiss any person in its employment at any time for: Immorality, incompetence, cruelty, insubordination, intemperance, or wilful neglect of duty ...."

In Beverlin v. Board of Education of Lewis County, W.Va., 216 S.E.2d 554 (1975), we reviewed W.Va.Code 18A-2-8 (1969), and we concluded that although it granted a board of education broad powers in dismissing an employee, it did not authorize a board to act arbitrarily or capriciously. We said, "(t)he authority of the county board of education to dismiss a teacher under W.Va.Code 1931, 18A-2-8, as amended, must be based upon the just causes listed therein and must be exercised reasonably, not arbitrary and capriciously." Syl. pt. 3, Beverlin v. Board of Education of Lewis County, supra.

With regard to problems involving the professional and administrative competency of school employees we have said,

(t)he law does not contemplate that the members of a board of education shall supervise the professional work of teachers, principals and superintendents. They are not teachers, and ordinarily not qualified to be such. Generally they do not possess qualifications to pass upon methods of instruction and discipline. The law clearly contemplates that professionally trained teachers, principals...